What Straight Allies Need to Understand About Gay Marriage and States' Rights

By E.J. Graff

The fight for gay marriage rights is not like the fight against anti-miscegenation laws. It's more like the fight for divorce law liberalization, and that's why it needs to stay a state issue.

Reuters

I'm getting cranky about how many people have been criticizing President Obama's breakthrough position on marriage equality without knowing what they are talking about.

He's for it, Obama told Robin Roberts, as we've all heard by now: same-sex couples should be able to get married just like our heterosexual siblings. When the president of the United States said that my marriage should be treated as the equal of his own, I was moved far beyond what I might have expected. The announcement had tremendous cultural power. And he hit precisely the right political notes in his statement, too, talking about his emotional shift on the issue, offering others the same path.

But too many people whose marriages are not up for debate have been griping that his announcement was too little, too late. He's
endorsing federalism, argued Adam Serwer in Mother Jones. He's championing state's rights, complained left-of-center blogger Digby: "This is the essence of retrograde, reactionary politics and there's a long history of these 'sovereign' states exercising their 'rights' to deny minorities their freedom." Even House Assistant Minority Leader Jim Clyburn was upset with the president's approach. "I depart from the president on the state-by-state approach. If you consider this to be a civil right, and I do, I don't think civil rights ought to be left up to a state-by-state approach," he said Monday.

Such critics of Obama are wrong. They are wrong about what the administration has done and said, wrong on the politics of gay marriage, and -- most important -- they are wrong on the law.

To start with, here's what Obama actually said. He talked about his Justice Department's refusal to defend DOMA, the Defense of Marriage Act, against legal challenges, taking the position that it is unconstitutional. His administration was "no longer defending the Defense Against Marriage Act, which tried to federalize what is historically been state law," Obama said in announcing his support for same-sex marriage on ABC News last week.

He went on to explain that he feared (accurately, in my view) that by taking a stand in favor of marriage equality he could actually set the cause back: "I have to tell you that part of my hesitation on this has also been I didn't want to nationalize the issue. There's a tendency when I weigh in to think suddenly it becomes political and it becomes polarized."

And he accurately described the reality of American legal approaches toward same-sex couples -- and reaffirmed that that's precisely how marriage law works in this country:

And what you're seeing is, I think, states working through this issue -- in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that's a healthy process and a healthy debate. And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what's recognized as a marriage.

Does that mean he's supporting "states' rights"? No, it does not. He's taking a position that will help my Massachusetts marriage actually end up being recognized in every state in the country sooner rather than later.

Let me explain.

States have always written their own marriage laws -- and if they didn't, if we had national marriage laws, I would not be married right now, as I have explained in great detail over at The American Prospect. I'm married in my state of Massachusetts only because the states are the laboratory of marital change.

Here's the technical caveat: the question of interstate recognition of another state's marriage is a federal question, mostly. And there, Obama is in favor of knocking down the federal DOMA, which as he noted was a federal incursion into state territory. And that's exactly what we need now: for the federal government to repeal its unprecedented incursion into marriage law -- DOMA, which defines marriage for federal purposes as between one man and one woman -- and to recognize all marriages that have already been made by the states.

What would de-federalizing marriage law do? It will make it possible for same-sex marrieds to be treated not just as married in their home states, but also in the United States. That's what would happen if DOMA is either repealed by Congress -- and Obama openly supports the Respect for Marriage Act, which would do just that -- or is knocked down by the federal courts, as a number of lawsuits are seeking -- and, again, which
the Obama Justice Department also actively supports. Let us be 100 percent clear on this point: The administration is refusing to defend DOMA in court, and is filing briefs supporting the same-sex couples' stands. When marriage law is de-federalized, returned to the states, then mixed-nationality couples will be free to marry in the six (and expanding) states that now marry same-sex couples -- and the federal government will have to recognize that marriage for the purpose of the foreign-born partner's immigration status.

Will other states have to recognize those marriages as well? That's the open question: the lawyers tell me that full faith and credit doesn't necessarily apply if another jurisdiction's
marriage law violates that state's public policy. Would it be valid for a couple living in Texas to go to Connecticut or Iowa specifically to evade their home state's marriage laws? Obama hasn't weighed in on that yet. And thank God -- if supporters of marriage equality want to win, it's better to keep that question from being called up for public debate just yet, and better to keep Obama out of polarizing the debate. But given the administration's record, my guess is that an Obama Department of Homeland Security and an Obama Justice Department would be on the right side of that legal question. It's equally clear that a Romney administration would not. When Romney was my state's governor, he put his administration to work unearthing and enforcing a 1913 law that refused Massachusetts marriage licenses to anyone from states where that particular marriage would not have been performed -- a law written to prevent out-of-state mixed-race couples from marrying in Massachusetts if they couldn't marry back home.

And yet anti-miscegenation laws are not a good parallel with state laws and constitutional amendments, like North Carolina's, which ban recognition of same-sex marriages.

Anti-miscegenation laws were closer to anti-sodomy laws: they actually criminalized marriage between races. The famous case that brought down interracial marriage bans, Loving v. Virginia, was brought by Mildred and Richard Loving after they were
arrested in their own bedroom, charged, prosecuted, and sentenced to a year in prison unless they left the state. If my aunt and uncle -- an interracial couple -- had visited Virginia in 1958, they could have been arrested and jailed for their marriage. If I visit Virginia or Florida today, no one will arrest me for being married to my wife, Michelle. No state has yet made it illegal for me to be married to another woman. The state just doesn't have to treat me as married.

That refusal of recognition matters mainly at life's extremes -- in times of disease, disaster, divorce, or death -- and when children, taxes, and public accomodations are involved. That refusal seared Janice Langbehn in 2009 when her wife sickened with an aneurysm on a cruise near Florida: the hospital refused to recognize their relationship, and kept Langbehn and their children from visiting her spouse and their mother as she died. Of course these stories are horrific. But they're not the same as being thrown in jail for being
married. Obama's administration jumped in and wrote hospital visitation regulations requiring any hospital that takes Medicare or Medicaid -- which means, effectively, all American hospitals -- to offer equal visitation rights to all families. And that is precisely the right approach for a polarizing administration to take: a tightly targeted regulation that does not peep above the radar for the vast majority of people, and which avoids any mention of the M-word. No one with a heart wants someone to die without her beloved holding her hand. Popping the marriage question can come later after stories like that soften hearts. And we hear far fewer stories like that than we used to; those I do hear are reported not just subculturally, among LGBT folks, but nationally, like the Langbehn/Pond case.

There's another reason the bans on interracial marriage are a poor parallel with same-sex marriage: same-sex marriage is a new idea, while interracial marriage was possible until states banned it as part of a comprehensive post-Civil War regime to impose slave-like status on blacks in every way but outright ownership. That post-Reconstruction moral panic -- the attempt to enforce an ideology that black and white and yellow and brown were all separate species -- was long, but historically temporary.

Same-sex marriage, on the other hand, hasn't been tried before. It may seem obviously
just to many of us today, but that's only because the West's marriage ideology has been transformed by capitalism and feminism, from an older ideology of a gendered distribution of labor to a newer ideology of an equal partnership based on affection. Same-sex couples fit in today's definition -- but getting acceptance for that requires changing hearts and minds, bit by bit, one by one. That can't be accomplished by presidential fiat in a sharply divided country.

If interracial marriage bans aren't a good parallel with the same-sex marriage debate, what is? Divorce laws. Indiana passed the first radical no-fault divorce law in 1850, which became a national scandal until it tightened its residence requirements. Other then-Western states quickly stepped up for the divorce trade, including Illinois, Utah,
South Dakota, North Dakota, Oklahome, Wyoming, and finally the state most clearly ensconced in cultural memory as a haven for would-be divorcees, Nevada. The question of whether states had to recognize each others' divorces reached the Supreme Court -- repeatedly.

Over and over, for more than 100 years, the Supreme Court returned 5-4 verdicts that sometimes favored the out-of-state divorce -- and sometimes did not. By 1948, one Supreme Court Justice was so frustrated at once again facing the divorce question that he wrote, "If there is one thing that the people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married, and if so, to whom."

But the question didn't roil just the courts. No-fault divorce with remarriage rights divided the Protestant denominations for years: wasn't this polygamy, and wouldn't it lead quickly to legal incest and bestiality? (The Catholic church was against the divorce law changes; the Jews were largely for; only the Protestants were mixed.)

Is there a fundamental right to divorce and remarry? Not according to the definition of marriage that the Christian churches had promoted for centuries. But social attitudes changed, and so did the laws, eventually -- even in the states of New York and South Carolina, the two notorious laggards -- albeit with much pain for everyone involved.

State DOMAs and SuperDOMAs are not the equivalent of sodomy or anti-miscegenation laws. I don't expect to be jailed anywhere. Do I have a fundamental right to be married to someone of my sex just because I love her? I think that's pretty complicated. Transforming that from a new idea to a legal right will come only by changing individual hearts and minds. Given the obvious trend in rapidly shifting public opinion, I believe that all of the U.S. will recognize my marriage within ten years. But marriage equality advocates are only going to win if people keep changing their minds, learning from situations like the Langbehn/Pond family, not if there's some federal fiat or grand bully pulpit declaration that makes Obama-haters start grinding their teeth and fighting back.

In my lifetime, nongay liberals' great big sweeping gestures on behalf of LGBT rights have repeatedly backfired. President Bill Clinton raced out like a bull in a china shop on opening military service to lesbians and gay men, although activists closest to the issue could have told him it was a political loser that would cost gay folks, as well as the entire Democratic Party. As a result we got nearly two decades of "Don't Ask, Don't Tell," which was worse than the previous executive order. Then Clinton had nowhere to stand when the marriage issue came up and the U.S. ended up with DOMA, the federal law against recognizing my marriage. San Francisco Mayor Gavin Newsom thought equality was a good and principled idea and started marrying same-sex couples without checking in with LGBT advocates, calling the question before the ground forces were ready. Those
weddings were beautiful. But as a result, in 2004 state DOMAs began to be pushed all across the country, and the whole California LGBT advocacy infrastructure has had to spend the last eight years in court and fighting still more ballot questions.

I'm not saying that straight liberal political leaders should have been checking in with some grand LGBT central council; LGBT activists have all along been furiously disagreeing with each other on the marriage goal, and on strategy and tactics. No one can control mass movements like this one. But I am saying that Obama is going at precisely the right pace: first action, then language. He keeps real progress well below the radar. First he refuses to defend DOMA in court, and has his Justice Department argue in favor of strict scrutiny on sexual orientation. Who pays attention to legal fine points like that? Wonks and nerds. Nobody else. He did the same with hospital visitation regulations. Who reads HHS regulations? I'd rather have steady, small-bore progress than big soaring rhetoric that roils up our opposition.

Obama's announcement changes the culture at just the right incremental pace. Later on, once more states have repealed their anti-marriage equality laws, it might be time to take the question of "fundamental marriage rights" to the Supreme Court or the nation's top executive. The U.S. Supreme Court didn't decide Loving v. Virginia until 1967, 19 years after California's Supreme Court first knocked down its anti-miscegenation law, at a time when only 17 states still had anti-miscegenation laws left on the books -- and when the South's segregation ideology had been thoroughly and publicly discredited, and the U.S. Civil Rights Act had been passed.

Right now, 30 states have statutory or constitutional bans on recognizing same-sex marriages. We still don't have ENDA, and DOMA is still on the books. Until some of those facts change -- which is happening quickly -- making progress state-by-state sounds just right to me.